2004 03 31
Well, I’m shocked. It turns out that the U.S. is not, as a matter of international law, supposed to detain people in Guantanamo, at least in the way it has so far. This, according to a U.N. committee on human rights.
I know, I know. Doesn’t the U.N. have bigger – or, um, more offending – fish to fry? And what credibility can it possibly claim when Syria gets a spot on human rights committees? And so on and on.
But there’s a serious point here. There are occasional calls to reform the U.N. and give its human rights claims more teeth – the sort of thing that would put Syria and other countries on the hot seat. I’m all for that. Let’s not fool ourselves, though. The U.S. would also be reluctant to see genuine reforms, since genuine reforms would make criticisms like the one I mentioned above all the more difficult to brush off. I think the Bush admin’s treatment of the ICC gives a decent idea of how it would treat any really fair and open reform of international measures to promote human rights. That’s a pity, because for all its failures, the U.S. really is crucial to the development of the kinds of norms and practices that would benefit everyone in the long run. That’s sort of why I harp on this so much.
Mulling this over yesterday reminded me of a book I read a while ago, Richard Falk’s The Great Terror War. Falk wrote the book after 9/11. It’s a serious attempt to think through some of the difficulties raised by 9/11 and especially the implied threat in 9/11 of something far worse to come. If I remember correctly, one of Falk’s main points is that the threat of “mega-terrorism,” as he calls it, justifies some modification to existing international law. The solution here is not to just break international law, but to attempt to craft some principled and suitably restricted modifications to it.
Well, the devil is in the details, of course. But the basic point seems fine to me. The virtue of Falk’s approach is that he balances a willingness to recognize the difficulty of fighting “mega-terrorism” (the phrase just didn’t catch on) against the obvious worry that many countries, including the U.S., would abuse their new powers in the name of fighting terror.
It is my sad duty to report that the U.S. has done pretty much the reverse of what Falk recommends. The administration’s official position is that it is following international law in Guantanamo (because the captives don’t qualify as legitimate prisoner’s of war). If you think about it, this implies – rather perversely and contrary to what the admin actually believes – that existing international law crafted years ago under entirely different circumstances is perfectly suited to handling fresh challenges involved in fighting an international group of loosely organized terrorist cells.
On the other hand, the administration’s unofficial position is that it hardly matters if the detentions are illegal. The administraton demonstrates this contempt for the law every time it brushes off fundamental challenges to the detentions – as if it weren’t obvious that the Geneva Convention requires that the detainees be brought before a tribunal, at the very least, to determine their status. (I’ve read conflicting reports about conditions at the camps. I’m not sure what to believe, but the point is that the conditions are irrelevant – or rather, the fundamental objection is not to the conditions of detention, but rather to their legal justification. Another thing to note is that it was the military brass that pushed the hardest for the Geneva Convention, and many of the better features of Guantanamo are probably due to its intervention.)
The result of all this sqeamishness about international law has been deeply unsatisfying. In a situation where the administration might have been able to seize the momentum to refashion crucial legal tools necessary for fighting a long struggle against terrorist groups like AQ, it chose at once to deny the need for these crucial tools while at the time unnecessarily undermining the legitimacy of its own behaviour.
This isn’t a problem without consequences, either. The finer points of international law can make a huge difference in how well the U.S. is able to coordinate its counterterrrorism activities with other countries. To take one modest example which most Americans will likely never have heard about, there was an enormous fuss in Canada when Canadian troops in Afghanistan handed over suspected AQ members directly to U.S. troops. Why, you ask? Because doing so made Canadian troops complicit in a clear violation of the Geneva Convention – a rather bigger deal up North than it is here. The Canadian government no doubt took heed of the heat it took over this, as, I’m sure, did other governments. If you think that doesn’t make a difference, think again.
Ah, lost opportunities and squandered good-will . . . We’re in the vicinity of the defining quality of the Bush administration.